Mixon v. Whitman

• Citation: 184 So.2d 332,279 Ala. 249
• Decision Date: 17 March 1966
• Docket Number: 4 Div. 130
• Parties: Travis MIXON, Jr., v. Basil WHITMAN.
• Court: Supreme Court of Alabama

Page 332

184 So.2d 332

279 Ala. 249

Travis MIXON, Jr., v. Basil WHITMAN.

4 Div. 130.

Supreme Court of Alabama.

March 17, 1966.

S. Fleetwood Carnley, Elba, for appellant.

G. A. Lindsey, Elba, for appellee.

LAWSON, Justice.

This is a detinue suit filed in the Circuit Court of Coffee County, at Elba, on March 13, 1958, by Travis Mixon, Jr., against Basil Whitman to recover 'Eight THDP--58 Model flatbed Trailers, Serial Nos. T587--B, T588--B, T589--B, T590--B, T591--B, T592--B, T593--B and T594--B, and being the same eight flatbed trailers having the Trademark 'Taylor Trailers' thereon, and located on the lot of Basil Whitman or Whitman Motor Company in Elba, Alabama' and damages for the detention thereof 'from this date to date of trial.'

On March 17, 1958, the sheriff took possession of eight trailers, which were on the lot of Basil Whitman, the defendant, under writ of seizure issued by the clerk based on affidavit and bond made by the plaintiff. The return of the sheriff shows that none of the trailers which he seized bore any of the serial numbers set out in the complaint. They bore different serial numbers. The sheriff's return also shows that each of the trailers which he seized was without certain parts or accessories. Thereafter, the defendant, Whitman, gave a replevy bond and so retained possession of the property which the sheriff had seized.

On April 11, 1958, the defendant filed three pleas. In Plea 1, which was not under oath, the defendant disclaimed possession of the trailers described in the complaint but averred that at the time of the levy by the sheriff he was in possession of eight trailers, which he described by serial numbers. In his Plea 1 the defendant further alleged that 'under the purported authority of the writ of detinue issued in this cause the sheriff of Coffee County, Alabama, levied on the eight trailers described next above and that the Defendant is now in possession of the last described trailers under forthcoming bond as is provided by law.' Wihout waiving 'the disclaimer' the defendant further pleaded (2) the general issue and (3) that he was not guilty of the matters alleged in said complaint.

On January 11, 1960, the defendant 'without waiving the disclaimer heretofore filed,' filed a plea of the general issue in short by consent in the usual form. Also on January 11, 1960, the defendant filed a so-called 'Amendment to Answer' wherein he asked that Plea 1 filed on April 11, 1958, be stricken and added in lieu thereof Plea 1A which is in the identical language of Plea 1. However, Plea 1A was under oath.

On January 12, 1960, the plaintiff filed a motion to strike Plea 1A and the plea of the general issue in short by consent.

On January 18, 1960, upon defendant's motion, the trial court permitted the defendant to withdraw his Pleas 2 and 3 filed on April 11, 1958. As heretofore shown, Pleas 2 and 3 were in effect the general issue. The court in the order permitting defendant to withdraw Pleas 2 and 3 provided that the defendant could plead further.

On January 18, 1960, the trial court struck the defendant's 'Pleas No. 1 and No. 1--A' but without prejudice to defendant to file a 'new Plea of Disclaimer.' The defendant's plea in short by consent was also stricken. The plaintiff in its motion to strike filed on January 11, 1960, had not sought to have Plea 1 stricken. The defendant had sought to eliminate that plea in his so-called 'Amendment to Answer' filed on January 11, 1960.

So at this point in the proceeding no plea of the defendant remained.

On January 21, 1960, the defendant filed an instrument captioned 'Defendant Files Further Answer to Complaint.' In the first paragraph the defendant purported to withdraw his 'pleas of the general issue in short by consent filed 11 January 1960' and his 'pleas two and three heretofore filed in this cause on 11 April 1958.' The plea of the general issue in short by consent had been stricken on January 18, 1960, and Pleas 2 and 3 had been withdrawn on motion of the defendant on January 18, 1960. In succeeding paragraphs the defendant set forth his Pleas B, C, D, E and F. On January 22, 1960, defendant filed Pleas G, H and I.

On January 25, 1960, the plaintiff filed a motion to strike Pleas C, D, E and F and on the same day interposed demurrer to those pleas and to Plea B. On March 17, 1960, the plaintiff assigned additional demurrers to Pleas B, C, D, E and F and interposed demurrers to Pleas G, H and I.

On May 18, 1960, the trial court overruled plaintiff's motion to strike Pleas C, D, E and F and on the same day overruled the demurrers interposed to Pleas B, C, D and G, but sustained the demurrers directed to Pleas E, F, H and I.

On May 20, 1960, additional demurrers were interposed by plaintiff to Plea B. Those demurrers were overruled by the trial court on May 23, 1960. The judgment overruling those demurrers concludes as follows: '* * * and Defendant is hereby granted seven days to file additional pleadings and at the expiration of said time Plaintiff is hereby granted seven days to file responsive or additional pleadings.'

On May 30, 1960, the defendant filed amended Pleas E and F, to which the plaintiff interposed demurrers on June 2, 1960. The plaintiff on June 2, 1960, also filed a motion to strike amended Pleas E and F. The motion to strike amended Pleas E and F was denied on August 18, 1960, but the demurrers interposed to those pleas were sustained on that day.

Under the rulings of the trial court referred to above, only Pleas B, C, D and G remained and plaintiff joined issue on those pleas, saying by way of replication that the allegations of those pleas were untrue.

On the issues thus made the cause came on for trial before the court and a jury in September of 1960. A mistrial resulted. There was another trial in June of 1961. It resulted in a mistrial. The third trial, which was held in March of 1962, resulted in a verdict and judgment for the defendant. Without filing a motion for a new trial, the plaintiff appealed from the judgment rendered on March 8, 1962.

Section 934, Title, 7, Code 1940, reads:

'The general issue, when pleaded in a detinue suit, is an admission of the possession by defendant of the property sued for at the time of the commencement of the suit.'

And § 935, Title 7, Code 1940, provides:

'Upon the defendant's disclaimer, which shall be under oath, the plaintiff must join issue thereon, and the burden shall be upon the plaintiff to show that the defendant was in possession of the property sued for at the commencement of the suit. If such issue is found for the plaintiff, he shall have judgment against the defendant for the property sued for; otherwise the defendant shall recover his costs. When as to any property the defendant pleads the general issue or files a replevy bond, he shall be precluded from disclaiming possession of such property.' (Emphasis supplied.)

Appellant's assignment of error No. 1 is that: 'The trial court erred in its decree of 18 January 1960 by which the defendant was allowed to withdraw his Pleas Two and Three.'

The principal point of controversy between appellant and appellee is whether the appellee had in his possession at the time the suit was filed the trailers described in the complaint filed by appellee. If the pleas of the general issue remained in the suit, then under the provisions of § 934, Title 7, Code 1940, the appellee could not have denied that he had possession of the trailers described in the complaint at the time it was filed. For that reason appellant earnestly insists that the trial court erred in permitting appellee to withdraw his pleas of the general issue although the record before us does not disclose that appellant objected in any way to the request of appellee that he be permitted to withdraw those pleas.

The general rule is that it is within the discretion of the trial court to permit the withdrawal of pleadings when request therefor is timely made. Valenzuela v. Sellers, 253 Ala. 142, 43 So.2d 121; Southern Hardware & Supply Co. v. Block Bros., 163 Ala. 81, 50 So. 1036. In the case last cited we said:

'The appellant filed a plea of the general issue, and afterwards filed a motion to be allowed to withdraw the plea and interpose a demurrer, which motion was overruled by the court. This was a matter within the discretion of the court, and not reversible. (Authorities cited)' (163 Ala. 83, 50 So. 1037)

Nothing to the contrary is said in Burrow v. Leigeber, 261 Ala. 231, 73 So.2d 562, or in Deholl v. Pim, 219 Ala. 372, 122 So. 320. In fact, the Deholl Case is cited in Valenzuela v. Sellers, supra, in support of the general rule.

We hold that the trial court did not err in permitting the appellee to withdraw his pleas of the general issue, Pleas Two and Three.

Assignment of Error No. 2 reads: 'The Court erred in its decree of January 18, 1960 by decreeing in substance as follows: 'without prejudice to Defendant to file new plea of Disclaimer. '' There were two judgments or orders rendered by the trial court on January 18, 1960. One of them permitted the defendant to withdraw his Pleas Two and Three. We have discussed it in connection with Assignment of Error No. 1. The other was rendered in response to appellant's motion filed on January 12, 1960, to strike appellee's Plea 1--A and his plea of the general issue in short by consent.

By that judgment or order appellant's motion to strike both of those pleas was granted and, of course, appellant does not complain of such action. But the judgment or order insofar as it relates to appellee's motion to strike appellee's Plea 1--A provided that the motion to strike was granted 'but without Prejudice to Defendant to file new Plea of Disclaimer.' It is the provision last quoted above of which appellant complains in his Assignment of Error No. 2.

We have heretofore said that reversible error is not made to appear in the action of the trial court permitting the appellee to...